The DWP have his week published new guidance for decision makers on the PIP mobility component. The guidance explains that no fewer than three separate decisions may need to be made on the same claim for the mobility component, as a result of the DWP’s past failures to get the law correct.
The memo explains to decision makers how they should make decisions in relation to the mobility component following a change in the law brought about by cases known as MH or RJ.
In MH it was held that ‘follow the route’ in the planning and following journeys activity means making your way along a route and doing so safely and that experiencing psychological distress should be taken into account more widely.
In addition to the MH decision, however, a further decision in a case called RJ obliged the DWP change the way they defined safely. The DWP had been arguing that if the claimant could carry out the activity without harm on the majority of days then it was safe for them to do so. The court decision obliged the DWP to take account instead of how great the harm might be as well as the likelihood that it might happen.
The result, as the memo explains, is that for a single claim for PIP three different decisions may have to be made.
If the claim was made before 28.11.16 then it will initially be decided as if neither MH or RJ existed.
However, for any period from 28.11.16 the decision maker will have to look at the decision as it is affected by MH.
And for any period from 09.03.17 the decision maker will have to look at the decision again to also take into account the definition of safety in RJ.
The 17 page memo gives eight examples of decisions that will have to be looked at three times.
For example:
The claimant has PTSD. When they are outside, if there are loud noises, such as an emergency vehicle siren, they are likely to suffer an overwhelming panic attack and cannot travel further without the help of another person to help overcome that distress. The fear of these panic attacks happening has itself become so great that the claimant suffers severe anxiety at the thought of travelling alone.
PRE-MH
The CM decides that the claimant’s problems do amount to overwhelming psychological distress. As the claimant is able to travel routes if accompanied, the CM decides the claimant satisfies descriptor 1b.
MH
The claimant needs accompaniment to travel on all routes in order to avoid the effect of overwhelming psychological distress. The CM decides to award descriptor 1f.
POST-RJ
This would not have impact as descriptor 1f is already awarded.
However, the memo also points out that many awards in the periods in question will be covered by the review announced by the government this week of over 1.6 million claims.
The review exercise is known by the DWP as LEAP.
Decision makers are advised that when carrying out current planned or unplanned reviews of claims they should take into account MH and RJ from the review date onwards, but leave the LEAP exercise to try to untangle the correct awards for periods before the review date.
Where a claimant specifically asks for a review of their decision to be looked at solely on the basis of MH and/or RJ decision makers are told that they should then look again at the decision in the light of MH and RJ.
The memo sets out the complex process to be followed:
Where MH only applies and the decision was made before 28.11.16, the decision should be superseded with effect from 28.11.16
Where both MH and RJ apply and the decision was made before 28.11.16, the decision should be superseded with effect from 28.11.16. A further supersession should be made from 9.3.17 to take into account (RJ).
Where the decision was made on or after 28.11.16 but before 9.3.17 and MH applies, the decision should be revised on the grounds of official error. . If RJ also applies, the decision as revised should be superseded from 9.3.17 (reinterpretation of the law).
Where the decision was made on or after 9.3.17, the decision should be revised on the grounds of official error taking into account MH & RJ accordingly.
The memo goes on to give two examples where a claimant has asked for their award to be looked at again in the light of the changed caselaw. In the first example, the claimant asks the decision not to award PIP to be looked at in the light of RJ. it is held that the original decision was correct because, even though RJ would have applied, the decision was made before RJ and therefore the claimant must make a new claim.
Example 1 - previous decision made before 9.3.17
A claim to PIP was made on 4.1.17. The DM decided on 1.3.17 that the claimant is not entitled to PIP. The claimant applies for MR in the light of RJ. The DM looks at the case again and decides that RJ applies. However, the original decision to disallow the claim cannot be superseded on the grounds of error of law because it predates the decision in RJ. Therefore, the DM should give a decision refusing to revise for official error and the claimant should be advised to make a new claim.
In the second example, the claimant was not originally awarded PIP but MH and RJ are both held to apply and an award is made.
Example 2 - previous decision made on or after 9.3.17
A claim to PIP was made on 4.1.17. The DM decided on 6.6.17 that the claimant is not entitled to PIP. The claimant applies for MR in the light of MH and RJ. The DM looks at the case again and realises that MH and RJ ought to have been taken into account in the decision of 6.6.17, since it was made after the date on which MH and RJ were decided. The DM revises the decision of 6.6.17 on the grounds of official error and makes a decision awarding PIP from 4.1.17 taking account of MH, and supersedes from 9.3.17 to take account of RJ.
Where an appeal has been made against a decision that was made on or before 28.11.16 decision makers are told not to revise the decision and lapse the appeal as the tribunal may be able to make a decision more favourable to the claimant than the decision maker can.
The degree of complexity of the situation means that claimants considering asking for a PIP decision to be looked at again really do need to try to get advice if they possibly can before doing so.
You can download the guidance on PIP mobility ADM memo 16/18: PIP mobility activity 1, effect of Upper Tribunal decision MH v SSWP (PIP) [2016] UKUT 531(AAC) from this page
